Analysis: Law need not bow to chemistry

Posted Thu, June 25th, 2009 3:36 pm by Lyle Denniston

Analysis

Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analyses. The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution.

Justice Antonin Scalia, the Confrontation Clause’s most devoted defender on the Court, wrote for the majority: “There is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts.”

The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.

Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst. It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated.

The opinion recited a good deal of information from published reports about how defective crime labs and their results are, and said that claims that lab reports are the product of “neutral scientific testing” are open to challenge because such reports are not “as neutral or as reliable” as advertised. “Forensic evidence,” Scalia wrote, “is not uniquely immune from the risk of manipulation.”

He cited one report, for example, that said “there is wide variabiility across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.”

Putting the chemist or lab technician on the stand to be tested by cross-examination, the majority said, will help “weed out not only the fraudulent analyst, but the incompetent one as well.”

Still, Scalia said, the decision to compel the reports’ expert authors to testify is based ultimately on the right of confrontation, not the quality of the reports or the credibility of the chemist. “We would reach the same conclusion,” he wrote in a footnote, “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”

To the complaints of prosecutors (and the dissenting Justices) that the decision is going to lay a heavy new burden on the preparation and analysis of criminal evidence, Justice Scalia opined that “the sky will not fall.”

The best evidence of that, he wrote, is that the sky had not fallen even without the new ruling, because “many states have already adopted the constitutional rule that we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Right after receiving notice of the prosecution’s intent to use a forensic analyst’s report…There is no evidence that the criminal justice system has ground to a halt…”

Moreover, Scalia said, defense lawyers may often opt not to insist on confronting a crime lab analyst, because they may conclude for strategic reasons that this might highlight rather than cast doubt on the report’s results as evidence.

Scalia’s opinion was supported by three of the Court’s more liberal members — Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — and by another conservative like Scalia: Justice Clarence Thomas. Thomas filed a separate concurrence, putting some limits on what he understood the sweep of the ruling might be.

Justice Anthony M. Kennedy, joined by two conservatives, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., and a member of the liberal bloc, Justice Stephen G. Breyer. Kennedy began his dissent with a sweeping challenge: “The Court sweeps away an accepted rule governing the admission of scientific evidence. Until today, scientific evidence could be introduced into evidence without testimony from the ‘analyst’ who produced it. This rule has been established for at least 90 years.”

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.